IN THE CASE OF:	  

		BOARD DATE:	        17 MARCH 2009

		DOCKET NUMBER:  AR20080017905 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge be upgraded to a general discharge. 

2.  The applicant essentially states that he needs his discharge upgraded so he can obtain veterans benefits.  He also contends that he was suffering from depression and some other medical problems that he was unaware of at the time.   

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 27 October 2008, and a self-authored letter, dated 29 November 2008, in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show that he was inducted into the Army of the United States on 21 May 1970.  He completed basic training, but during basic training, he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority from his unit on or about 25 July 1970 and remaining absent until on or about 27 July 1970.  His punishment consisted of a forfeiture of $62.00 pay per month for 3 months until 30 October 1970.  He then completed advanced individual training and was awarded military occupational specialty 64B (Heavy Vehicle Driver).  Orders dated 21 October 1970, reassigned him from Fort Polk, Louisiana to the United States Army Overseas Replacement Station at Fort Lewis, Washington, with a reporting date of 13 October 1970.  However, he did not report as ordered, and he was placed in an absent without leave status on 13 October 1970.  On 12 November 1970, he was dropped from the rolls of the Army and classified a deserter.  He remained in this status until he was apprehended by civil authorities on 20 September 1972.  He was returned to military control on 26 October 1972, and assigned to the Special Processing Company, United States Army Personnel Control Facility at Fort Knox, Kentucky.  

3.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not available for review, Orders, dated 21 November 1972, separated him under the provisions of Chapter 10, Army Regulation 635-200 with an under other than honorable conditions discharge on 29 November 1972.  These orders also reduced him to the rank and pay grade of private/E-1 effective 20 November 1972. 

4.  Additionally, the available evidence contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was discharged for the good of the Service on 29 November 1972, and that he was issued a DD Form 258A (Undesirable Discharge Certificate).  This document also shows that he had 588 days of lost time prior to his normal expiration of term of service (ETS) date, and he had 158 days of lost time subsequent to his normal ETS date.  

5.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

6.  A physical examination was conducted on the applicant on 2 November 1972 in conjunction with his separation proceedings, and he was cleared both physically and psychiatrically for separation.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive [bad conduct or dishonorable] discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions [the current equivalent of the applicant's undesirable discharge] is normally considered appropriate.

8.  Paragraph 3-7 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides, in pertinent part, that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  This same regulation also provides, in pertinent part, that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge.

2.  The applicant's contention that his discharge should be upgraded so he can obtain veterans benefits was considered.  However, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits.

3.  Additionally, the applicant's contention that he was suffering from depression and other medical problems at the time was considered, but found to lack merit, as he was physically and psychiatrically cleared for separation by competent medical authority prior to his discharge.  

4.  Although the facts and circumstances pertaining to the applicant’s discharge were not available for review, it is clear that the he was charged with the commission of an offense or offenses punishable under the UCMJ with a punitive discharge.  It also appears that he voluntarily (emphasis added) requested discharge from the Army to avoid a trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  Based on the applicant's record of indiscipline, which included a total of 
746 total days of lost time, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   XXX_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080017905



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ABCMR Record of Proceedings (cont)                                         AR20080017905



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